Why Eric Holder’s Effort to Help Minority Voters Could Backfire

December 16, 2011

Attorney General Eric Holder is correct to crack down on the Republican operatives in various states around the country working to discourage voter turnout. But it’s a sad kind of correctness. Holder’s intervention will protect black America in the short term, but the philosophy of this intervention will likely work to our detriment in the long term. The problem is the disparate impact doctrine: The federal government ought to be treating interventions based on it like chemotherapy, as a desperate measure for a temporary period. It's not yet clear if, in this instance, it will.

Without a doubt, Republicans’ studious interest in state-issued photo ID cards is a sham. It’s the elderly and minorities—brown ones, to be specific—who are least likely to have such identification, least likely to hear that they need it, and least likely to be able to obtain it quickly upon finding out. Evidence is unanimous that there has been no significant amount of voter fraud due to a lack of falsified ID. The Republicans’ interest in the whole issue, including ancillary proposals such as those in Florida that would discourage voter registration drives, is based on a cynical ploy to keep the black vote down.

That said, comparisons with the South’s naked suppression of the black vote before the Voting Rights Act of 1965 are overstated. What the Republicans are doing now is brutally cynical, but doesn’t compare with efforts from that earlier era, when Southerners were motivated by a conviction that blacks were subhumans, “Nigras” best taken care of like chattel. Recall, for example, that from the 1930s on, after blacks’ allegiance started shifting to Democrats in the wake of FDR’s New Deal, these Southerners were suppressing votes that would have gone significantly to their own party.

Today’s Republicans pretending such a concern about voter ID are, by contrast, inspired purely by the prospect of short-term political gain. I’ve been acquainted with a couple of conservatives who think of these voter laws as a canny political gain. They aren’t bigots; it’s a matter of priority. They instinctively seize political advantage wherever they can get it: In 1990s, they were just as rabidly devoted to overthrowing Bill Clinton. For them, political philosophy and power trumps concern about black people’s feelings or fate. The logic is pretty simple: because blacks vote so overwhelmingly Democratic, suppressing black votes is a handy way to minimizing Democratic electoral gains. A computer would come up with that calculus in microseconds. A computer, after all, has no feelings—and when it comes to America’s racial fabric one might say the same about these Republican operatives.

Some will insist that this, too, is racist by definition. Fine, but beyond the realm of such semantic debates, it’s clear that these Republican actions are precisely what the Votings Rights Act was designed to combat. There is no denying that the standard set by the Act—that voting laws should not disparately impact different parts of the voting public—is violated by the new voter ID laws.

But black Americans should be cautious about embracing outright the disparate impact standard. Yes, in this case, it should help correct a racial injustice. But in many other situations, it has served to perpetuate them. The Voting Rights Act was originally designed to directly combat the kinds of explicit voting discrimination common in the Old South. In 1982, however, the law was amended: Section 2 was tweaked to target “discriminatory impact,” The operating assumption was that if black representation does not parallel their proportion of the population, then racism must be at fault. Notably, Section 2 applies not just to the Southern states famously monitored under Section 5, but to the nation as a whole.

The problem here is that as originally composed, Section 2 applied to discrimination against individuals, not groups, outlawing “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The intent was to address a longstanding injustice against one group, black people, an injustice which would not have changed without special attention of this kind. However, this was not to be taken as a brief for black people being treated forever as a mass of like-minded and like-burdened statistics. Rather, the idea was for members of this group to be able to cast their votes, above all, as individual American citizens.

A ready argument will be that the continuing existence of racism requires that black people continue to be treated, under voting laws, as a group. There are very good reasons to doubt that argument, however. Racism is hardly the only reason for low voter turnout among black people in our times. Example: in 1986, black Congressman Major Owens’ New York City district was 78 percent black. In the election that year, turnout was 13 percent. There were no blustering Southern colonels keeping black people home that year in Brooklyn. The problem was good old-fashioned race-neutral voter apathy.

On of the most pernicious effects of this latter-day interpretation of the Voting Rights Act has been the way it has encouraged the development of majority-minority districts. Originally, this made sense: especially in the South, mostly- or all- black districts were often the only way black voters could get their own elected. But today, whites elect blacks all over the country, and majority-minority districts,only discourage young black politicians from learning how to build cross-racial or cross-class coalitions. Instead, they often learn to indulge in leftish dogmas which make such politicians unlikely to acquire wider influence. Note, for example, how almost curiously obscure most of the members of the Congressional Black Caucus are--it is surely no accident that most of them gained their influence in the sort of black districts that the Voting Rights Act has been used to support. Also, districts in which mostly black people are led decade after decade by the same black person are ripe for voter apathy (as in the case of Major Owens, above). Encouraging majority-minority districts may have made sense once upon a time, but not any longer.

Pretending that disparate voting patterns spells racism and requires prosecution is bad for black people in the long run, as Abigail Thernstrom has neatly outlined. Holder is on firmer ground with his promised investigation of automatically registering all eligible voters, which would handily shield all Americans from callous shenanigans of the kind Republicans are attempting. We also ought to be asking why there has not been more genuine interest in getting the word out among black voters to have the photo ID that local laws require. There was a time when Southern black voters were barred from the franchise by a poll tax and gunfire. Today, we can’t just get people a driver’s license?

Yes, the fact remains that Republicans are trying to suppress Americans’ right to vote in a fashion that is not only utterly disgusting, but revoltingly reminiscent, with its targeting of black voters, of a searing injustice that disgraced this land not so very long ago. But if the result is to set disparate impact as the permanent standard by which we measure voting laws, we won’t be much better off. Pretending that unequal results always signal unequal opportunity is simplistic, theatrically distracting, and therefore, ultimately, backwards. Let’s hope that the Justice Department’s current action will be a matter of one more time rather than for all time.